An ethical person - like a politician, banker or lawyer - may know right from wrong, but unlike many of them, a moral person lives it. An Americanist first already knows that.
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Saturday, March 8, 2014

Exposing the "Living Document" Lie

Despite all historical evidence to the contrary, it is often claimed that the Constitution is a “living document” that is easily malleable through semantics and modern desires for extended federal power.

This is the view that saturates public schools, the mainstream media, law schools, and politicians. We are even sometimes told that a primary benefit of the United States Constitution is that it can be so easily manipulated at the will of politicians and judges.

However, this view flies directly against the evidence of history, and disputes the words of those who supported the document during the ratification debates. After all, the Constitution only provided the general government the powers “expressly delegated to it” according to Edmund Randolph, who had the duty of explaining the Constitution to Virginia’s Richmond Convention.

Similarly, when naysayers in South Carolina raised the same concerns of unlimited powers, Charles Pinckney rebuked their claims strongly by echoing these sentiments and insisting, “we certainly reserve to ourselves every power and right not mentioned in the Constitution.”[1] This clarification was not an isolated phenomenon; the Constitution was described this way in all states by its vigilant supporters.

The plain understanding that the Constitution only gave the general government the powers that were specifically enumerated was not a “theory” during the Constitution’s writing or adoption by the states. On the contrary, it was the only understanding reached by the states, and held until modern reinterpretations of the Constitution took hold. From the origin of the ratification debates, James Wilson’s “State House Yard Speech” confirms this to be the case. To the accusation that the Constitution gave the general government powers which were not explicitly stated, Wilson responded to such an assertion by noting that “everything which is not given is reserved.” Wilson said that power in the Constitution is not granted by “tacit implication, but from the positive grant expressed in the instrument of the union.”[2]

The constitutional model of Britain was considered insufficient in the states because it did not bring about a restricted centralized authority that was held down by specified powers. Britain’s constitution is a series of documents, traditions, and court decisions, which in summation characterize the “British Constitution.” Thomas Paine wrote in Common Sense that he found this type of constitutional framework to be “subject to convulsions.” This was stated categorically. After all, it could not be denied that the British government (kings such as John, Charles Stuart, and James II) consistently worked to undermine the liberties clearly spelled out in The Magna Carta, Petition of Right, and English Bill of Rights, and other constitutional documents and happenings.

Britain had a legislature (Parliament), an executive (the king), and a judiciary (the royal courts), so this type of governmental structure can exist without the necessity of a written constitution. Instead of giving the government palpable power to do everything, our founders had the ingenious wherewithal to draft a Constitutional model that is instead based on powers that are explicitly spelled out, chiefly in Article I, Section 8.

If the Constitutional model was truly that of a “living document,” an inquisitive mind may question why the founders made the document extremely difficult to alter through the amendment process notated in Article V. The notion that the states will easily come to the same conclusion on adjusting the Constitution is a faulty one. Obtaining sanction from 38 states on any topic, constitutional issues notwithstanding, is no easy feat. This limitation can be considered as a strong barrier of obstruction that is nearly impossible to circumvent.

It is irrefutable that founders made the document difficult to alter for a reason. Those who espouse views to the contrary do not seek to consider the document “living” because it can be changed; they strive to misinterpret specific clauses within the document to justify actions of an almost unlimited variety, using such content to draw upon a vast reservoir of untapped power. Thomas Jefferson wrote that by doing so, Congress “is to take possession of a boundless field of power, no longer susceptible of any definition.” The tendency to do so was considered constitutionally erroneous and invalid.

Those who advocate the “living document” doctrine typically point to several clauses within the Constitution’s text to justify these views. These clauses are sometimes referred to as the “elastic clauses.” Patrick Henry, a persuasive opponent of the United States Constitution, called them “sweeping clauses” because he believed they would provide overwhelming power to the general government and act to eradicate the power of the states. When it came to Henry and many other voices of opposition, the antagonists were swiftly rebuked by those who were responsible for bringing the states to an understanding of what the Constitution did.

One of the “sweeping clauses” is the Necessary and Proper Clause, which is sometimes used by government to justify a variety of “implied” powers. James Wilson, a leading supporter of the Constitution in Pennsylvania, explained that this prose did no such thing. Wilson stated: “the concluding clause, with which so much fault has been found, gives no more, or other powers; nor does it in any degree go beyond the particular enumeration.”[3] The clause’s text solidifies this view, and is written in a distinctively clear manner: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers[emphasis mine].” The Necessary and Proper Clause only gives Congress the ability to perform tasks incidental to carry out the specified enumerated powers. In Virginia, Edmund Randolph responded directly to Patrick Henry regarding the clause. Randolph said: “The gentleman supposes, that complete and unlimited legislation is vested in the United States. This supposition is founded on false reasoning…in the general constitution, the powers are enumerated.”[4]

The General Welfare Clause is another portion of prose which is used to rationalize the living document model, the portion of Article I, Section 8 which gives Congress the power to “provide for the common Defence and general Welfare.” Unfortunately, the modern understanding of this phraseology is completely divergent from the clear meaning of the expression at the time. The clear legal meaning of the phrase, borrowed from the Articles of Confederation, meant a small subset of duties each individual state considered appropriate to delegate to a separate authority. The states gave those powers to the general government out of convenience.

Roger Sherman, who moved to have the phrase added to the Constitution, is the best and most persuasive voice of clarification of the often misunderstood clause. The expression was added on August 25th in Philadelphia, so it could be connected with the clause for laying taxes and duties.[5] In other words, he wanted to make it explicit that taxes could only be collected for the specified powers.

Sherman was recorded as having made the observation that the “objects of the Union” were “few.”[6] Sherman listed “defence against foreign danger,” defense “against internal disputes & a resort to force,” “defence against foreign danger,” and “regulating foreign commerce & drawing revenue from it” as the powers of the general government. This is entirely consistent with Madison’s words from The Federalist and other sources, and was the conclusive understanding that the other representatives held in the Philadelphia Convention and the state conventions afterward. Historian Brion McClanahan writes that the initial proposal for insertion of this clause was rejected because it was considered to be redundant and unnecessary, passing only after Sherman’s persistence.[7]

Madison wrote this about the General Welfare Clause’s plain meaning when objecting to a 1792 bill which called for subsidized fisheries. The General Welfare Clause was cited as justification to pass such a bill. Madison responded:

“I, sir, have always conceived – I believe those who proposed the Constitution conceived, and it is still more fully known, and more material to observe that those who ratified the Constitution conceived –that this is not an indefinite Government, deriving its power from the general terms prefixed to the specified powers, but a limited Government tied down to the specified powers which explain and define the general terms.”[8]

In Madison’s estimation, the phrase simply reiterated that the specified powers were tied to “general terms.” In corroboration of Madison’s view was the noteworthy ratification of the Tenth Amendment in 1791, which made clear that powers not delegated are retained by the states or the people.

It is always helpful to revisit the primary sources and happenings of the state ratification conventions to explain what the Constitution did, rather than what modern voices claim. If conflicting, the first is always a more desirable and stronger explanation of truth. When forced to choose between views of what modern influences say about the Constitution, and what the founders and framers said about it, we do ourselves great justice as patriots to choose the latter every single time.

[1]The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume IV, 315-316.

[2]The Debate on the Constitution Federalist and Antifederalist Speeches, Part One, 63-64.

[3]The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume II, 436.

[4]The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume III, 427.

[5] James Madison, Notes of Debates in the Federal Convention of 1787, 530.